Human Rights Lexicon: Wall on the Right to Housing

We are delighted to welcome this guest contribution from Dr Illan Rua Wall of Oxford Brookes University. You can find out more about Illan on the guest contributors page. This is the second contribution to our Human Rights Lexicon and in this post Illan considers radical responses to the right to housing.

Radical Social Responses to the Right to Housing

Ireland is in the middle of a catastrophized recession. This will come as no surprise to anyone in Ireland, though perhaps it is not known as well internationally as one might think. One of the crucial features of the time leading up to the boom was the activity of the property developers, the ‘risk-taking’ darlings of the neo-liberal miracle. The developers built and built, while prices and availability of cheap credit grew. Until one day it all fell apart and the Irish economy collapsed into a heap on the floor. What was once ‘prime residential’ housing, is now a ‘toxic’ asset. A crucial feature of the post-crash Irish landscape is the presence of vacant or half-built houses and apartments. The question I want to address here is what those radicals concerned with social justice in Ireland should do in the face of this landscape. To get to the point, I would like to go back and point towards an alternate historiography which reveals that rights have been used in truly radical demands and assertions. This is necessary to challenge the (neo)liberal hegemony that rights are ultimately a relation to the state, and that the economy/market is the necessary determinant of policy. Unsurprisingly, perhaps, questions of property are key.

MacPherson famously says of Locke that he placed property at the heart of natural law, and then stripped the natural law from property. This is a curious formulation but one which bears drawing out. Locke begins the crucial chapter V of the Second Treatise on Government with the very old and tried argument that the earth is handed in perpetuity to Adam and his kin to be held in common. Locke then goes on to explain how private property is justified. In particular the issue of waste is crucial. Locke details how natural law prohibited the collection of more than you could use. The old adage was; waste is a sin. However, he shows how money facilitates the escape from this prohibition on waste. Because money is substitutable and cannot go to waste (i.e. it cannot go past its sell-by date), one is entitled to accumulate as much as one can. Thus, because of money there is no problem with unlimited accumulation. In chapter V Locke strips the natural law from property while maintaining the legitimacy of the ‘natural’ status for property.

It is little surprise then that the telling of the human rights history so often simply repeats the same old tried and tired linear narrative. If we are to think of radical rights responses to the death-rattle of neo-liberalism, we must look beyond the already given answers of this historiography. I suggest that this question of property and waste is crucial. There are other rights traditions which are far more useful to us as we look in at the collapse of the neo-liberal imaginary. These traditions are perhaps more difficult to lay one’s hands upon, but a brief look to such various figures as Gerrard Winstanley, Baruch Spinoza, Ernst Bloch or even the modern radical historians like Peter Linebaugh and Marcus Rediker. These figures allow us to begin to conceive of alternatives, to think of natural or indeed human rights which are more at home in the slums and tenements than the Fianna Fail tent at the Galway Races.

So what would this alternative history begin to look like? Bloch associates the natural rights tradition that human rights emerge from with the struggle for social justice.

Social utopias and natural law had mutually complementary concerns within the same human space; they marched separately but, sadly, did not strike together. Although they were in accord on the decisive issue, a more humane society, there nevertheless arose important differences between the doctrines of social utopia and natural law. Those differences can be formulated as follows. Social utopian thought directed its efforts toward human happiness, natural law was directed toward human dignity. Social utopias depicted relations in which toil and burden ceased, natural law constructed relations in which degradation and insult ceased. (Bloch, E, Natural Law and Human Dignity, (The MIT Press, 1987) preface, p. xxix)

However, he is not entirely correct in this assertion that the two remain separate and do not mix. Rather, earlier texts often brought the two senses of justice together. Magna Carta here is a prime example. Travel the offices of human rights professors of the world and quite often you will find a facsimile of the Universal Declaration and the Great Charter of King John. Rarely, if ever will you find its far more crucial supplement, the Charter of the Forrest. To bastardize terribly, let us briefly say that while Magna Carta granted certain rights and privileges, the Charter of the Forest guaranteed disafforestation and the commons. For a much more accurate and far superior rendering of the charter see Peter Linebaugh’s The Magna Carta Manifesto: Liberties and Commons for All(University of California Press, 2008). This was nothing less than a form of social justice, commoning was after all the sustenance of the poor of the middle ages. Mushrooms, berries and most importantly wood were free to any who would take them. The commons were free sites of pasture. If the human rights historians are to be believed, Magna Carta is a birth pang of modern human rights. However, if this is the case there is an illegitimate twin which emerges with the newly born discourse.

Let us take up this illegitimate strand later in the radical egalitarian natural law argumentation of Gerrard Winstanley the leader of the English Revolution’s ‘diggers’. There again we can find an a-legal mix of social utopia and natural rights. It is a-legal because, like the social movements around the world that utilise what Hakim Bey calls ‘temporary autonomous zones’, Winstanley argued for the withdrawal from legal norms and argumentation of his time. Instead he proposed the return to the commons whereby communities would farm the waste ground (often this common land had been recently enclosed or appropriated). Property was evil and sin stemmed from envy, he said. Natural law for Winstanley was the entire overthrow of the system of ownership and political priority for those that owned more than 40 shilling, which Locke was later to defend and naturalise.

A final, and very different example of this comes in John Steinbeck’s The Grapes of Wrath where the poor are forced to starve by the constantly falling wages and lack of employment, yet their natural sense of justice, which retains much of the theological that can be seen in the previous two examples, screams at the social injustice:

And the homeless hungry man, driving the roads with his wife beside him and his thin children in the back seat, could look at the fallow fields which might produce food but not profit, and that man could know how a fallow field is a sin and the unused land a crime against the thin children. And such a man drove along the roads and knew temptation at every field, and knew the lust to take these fields and make them grow strength for his children and a little comfort for his wife. (Steinbeck, J, The Grapes of Wrath, (Penguin Classics, 2000), p245).

There is a long tradition that says waste is against natural law. This is the radical political and legal message of Steinbeck, Winstanley and the Charter of the Forrest. Food and shelter, speech and association, this is the stuff of life. Against Bloch, natural law and social utopia are at times bound together.

Yet this is the message of all good human rights activists and academics as well: Civil and political rights are indissociable from economic, social and cultural rights, they form one corpus. However, let me suggest that the trajectory of the liberal adherents of economic and social rights is limited by the material that they must work with. Law, too often, curtails quests for justice and demands ‘reasonable’ solutions. As any good critical theorist will tell you, the ‘reasonable’ is always an expression of the current political hegemony. That women were irrational and should not vote was a ‘reasonable’ political position at the beginning of the last century, that the poor (not just the idle poor) were immoral ab initio and prima facie was ‘reasonable’ during the previous century, along with prejudice against Jews, blacks, Irish, etc. It was still politically ‘reasonable’ to talk of the African ‘natives’ as being ‘prelogical, living in a world of dreams and make believe, of mystery and awe… they are fetishists, animists, pre-animists or what have you and so on,’ only fifty years ago (Evans-Pritchard, E, E, Theories of Primitive Religion (Clarendon Press, Oxford, 1965), p105). What is ‘reasonable’ in any given political society is not eternal, it is constantly shifting and rarely an expression of justice. Certainly the law does, at times, rupture the given mores of a particular society, however these are rare and often overblown instances. Normative shifts occur not because an elite (be it juridical, economic or political) wills it, rather it occurs because of social movement, what we might romantically call, after Steinbeck ‘the awakening of the people’ (Steinbeck, p249).

We know well that Ireland’s history of economic, social and cultural rights is abysmal. We know that asylum seekers are kept in the most appalling of camps (and I use that term with the full historical significance in mind). We know that there is a glut of unsold housing built or almost built around the country. So, what if we take the beginnings of this alternative history of human rights seriously. What would an a-legal assertion of human rights in resistance to waste look like? What would Steinbeck, Winstanley and the Charter of the Forest suggest for our current times? It would not involve arguing and fiddling over bank bail-outs and toxic assets which are the very epitome of waste. I would like to suggest that we attempt to shift the imagination of our times. The term ‘toxic asset’ completely disassociates us from the fact that we are talking about houses, apartments, businesses. A ‘toxic asset’ is poisonous in that it does not make the money it should have done.

To begin the task of shifting the neo-liberal imagination, I suggest the crime of squatting (for it is a criminal offence in Ireland). Squatting is to take direct action, not against this or that policy of the government, but against trite neo-liberal abstraction and injustice. By placing people, real lived experience, in these ‘toxic’ assets, the reality of the situation is manifested in a material sense. Ireland is increasingly a country which is divided between the rich within their neat comfortable zones, and the poor who are increasingly subjects of toil, insult, degradation and burden. It is not alone in this, but that is not the issue. What if the 43,000 families currently waiting for social housing, broke into the empty houses and apartments all over the country, now in state (or at least NAMA) ownership? I suggest this would at once be an a-legal vindication of their economic rights, but it would also present an attempt to rupture the neo-liberal ideological hold on the country. This act would not solve any of the countries problems, but that is not the point. As a manifestation, it would present the problem in a different light by rupturing the all too regular tendency to make abstract that which is material. The act is certainly illegal, it is also entirely ‘unreasonable’ in a neo-liberal economic sense. However, that does not mean that it is unjust. It was ‘reckless fanaticism’ when Emily Davison threw herself in front of the Kings horse (‘A Memorable Derby,’ in The Times, 05/06/1913), it was economically ‘irresponsible’ for Thomas Clarkson to suggest that slavery should be abolished, however, in each instance the vision of the activist saw the true injustice behind the conservative rhetoric of the times. Perhaps it is time to break the strangle-hold of the neo-liberal economic discourse with the radical a-legal assertion of human rights.

This analysis is deeply flawed. Aside from the problemmatic nature of inciting criminal activity, there is no such concept of Rights that encompasses the right to remove another’s property. In fact, I do have a right to a house, as long as I pay for it myself, and that Right extends to not having it confiscated illegally by the State or any other party.
The vast number of empty properties in Ireland are not “waste”, they are houses nobody wants to buy. At some point, the state may end up owning them but until then, no legal scholar should be advocating their theft. Whether or not there is a “long tradition that says waste is against natural law” – and Steinbeck does not count in this regard – or not, such un-academic ideologically-biased criticism of “neo-liberalism” does not legitimise any crime.
Finally, why does the author imagine, that if Irish homebuyers do not want to live in these wasted housing estates, even at discounted prices, that the homeless and unemployed would want to?

Of course squatting is not theft; this is very important. There are a number of reasons. First of all the squatter acquires rights through use and enjoyment of land and those rights can be enforced against successors in title of the owner of the land, even if the land is sold before the period of limitation is up (12 years or, with land owned by a state authority, 30 years) thereby signifying their important possessory nature. Secondly the owner of the land has 12 years in which to take an action to assert his title and remove the squatter and indeed that period can be extended in certain circumstances. Thirdly adverse possession actually fulfils an important function for the market by ‘quieting title’. Fourthy more than mere intent to deprive is required, rather the squatter must have animus possidendi–the intenton to use and enjoy the land to the exclusion of all others–manifest that animus possidendi and maintain it for an appreciable amount of time. Finally adverse possession is not a breach of the landowner’s right to property as any landowner taking due care of his property will have ample opportunity to assert title and have the squatter removed (See Grand Chamber of ECtHR in JA Pye (Oxford) Ltd v UK)

Adverse possession has clear connections with Lockean theory of mixing one’s labour with the land for the purposes of acquisition of property. It is in fact a more complex conception in legal terms than is sometimes thought.

Illan’s idea is interesting in my view; I especially like the notion that what appears to be waste and is described in particularly unwelcoming terms (‘toxic’ assets, ‘ghost’ estates) can through inhabitation become useful, living amenities for those who need them. Inasmuch as there is a right to an adequate standard of living, a home etc… it is limited in real terms by the resources at the state’s disposal, problematic and all as that is in practice. If these empty units were put into state ownership then of course the state would have vastly increased resources with which socio-economic rights could be satisfied. If the state fails to do that then I can absolutely see the attractiveness of Illan’s proposal, certainly from an intellectual and political perspective.